정당해산결정에 부수하는 의원지위상실결정의 허용성

Abstract

The Constitutional Court passed decision on the requested dissolution of Unified Progressive Party in favor of Government and collaterally decided to deprive 5 national assemblymen belonging to that Party of their each membership of the National Assembly on Dec. 19, 2014. The problem raised by the decision is as follows. The Constitution granting the jurisdiction over dissolution of political party to the Constitutional Court or the Constitutional Court Act providing the legal procedure and the resultant matters of that dissolution lacks the provision(s) about whether the compulsory dissolution deprive those assemblymen of their each membership. For this reason the Constitutional Court established the ground of deprivation of the membership on the fundamental/intrinsic effect which the adjudication on dissolution of unconstitutional political party gives birth to. Such a rationale is based on the maintenance view of the status of assemblyman, and is also the view taken by the decision of the German Federal Constitutional Court on the dissolution of an unconstitutional political party, i.e. Die Sozialistische Reichspartei (SRP). The argument presented by the maintenance view in spite of the dissolution of an unconstitutional political party resides in the worry that “if we acknowledge an exception to the free mandate relation under the pretext of defending democracy, such exception may work as a poison to the direct cause of sacrificing the wholesome representative character of national assemblyman to the public and the principle of free mandate relation, and works as a poison to democracy.” But when a party nominates a person as a candidate for that party and make him participate in an election, the public elect him as their representative under the supposition that the party must not be the party impairing the fundamental free and democratic order and further will not impair that order in the future likewise. This sort of supposition corresponds to the 「assumptive will」 of the public forming and supporting the basis of representative system, and the character of their supposition corresponds to an affirmative one. After the election, the assumptive will varies a little nevertheless holds in passive form that the elected assemblyman, though not answering the fundamental free and democratic order actively, but still is without impairing that order in the course of legislative activity. The decision of the Constitutional Court judging a party as an unconstitutional one and making that party dissolve brings about a situation betraying such 「assumptive will」 of the public fundamentally. The maintenance view stubbornly advocates the holding of membership solely in the name of representative character to the public and the principle of free mandate relation even when the 「assumptive will」 is destructed, without offering any practicable restoration about the impaired representative character and the principle. For this reason the maintenance view is a dangerous thinking spree. The sovereignty cannot be discussed departing from 「volonté générale」 of the public. The writer also asserts that the decision on the deprivation of membership is linked to the review of unconstitutionality on possible legislations, if any. Even if a law stipulates that an assemblyman does not lose his membership in spite of a compulsory dissolution on the ground that the Constitution is silent about the membership, the Constitutional Court can declare such legislation as unconstitutional. It goes without saying the fundamental effect of adjudication on dissolution of unconstitutional political party requires such declaration. The reason of the writer's using terminology such as 「it goes without saying」, 「requires」 is, if the Constitutional Court does not declare the possible legislations as unconstitutional, it means that the Court neglects the situation where 「the function of protecting the Constitution and ideal and principle of defending democracy」 can not be fulfilled. The neglect of the Constitutional Court is, in itself, the neglect of an unconstitutional situation. In this essay, the writer not only present the refutation to the maintenance view but also survey the precedents about exercising the judicial power before the Constitution being ordained and established or without express Article of the Constitution. Further, the writer copes with the critics that the decision on deprivation of membership by the Constitutional Court exceeds the Court's jurisdiction of the Court as the Constitution does not authorise expressly by the maxim: 「quando lex aliquid concedit, concedere videtur et illud sine quo res ipsa valere non potest」 quoted by Chief Justice Griffith presiding the High Court of Australia in D'Emden v. Pedder.